Security rules exceed congressional intent
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."-Benjamin Franklin
We've been confronted by security threats throughout our nation's history. Sometimes - like when we locked up Japanese-American citizens in "relocation" camps, or used the power of Congress to destroy the reputations and livelihoods of supposed Communist "sympathizers" - we've traded freedom for a perception of safety. It has always been a mistake.
Our nation is making that mistake again. This time, the target is you, the student pilot, the flight instructor, the private pilot - anyone who holds an airman certificate.
On January 24, without prior public notice or comment, our government enacted three "direct final rules" that gut pilots' rights. These rules direct the FAA to immediately suspend, revoke, or refuse to issue an airman certificate to anyone whom the Transportation Security Administration (TSA) determines poses a threat to air transportation security.
Worse, under these new rules the government can strip you of your pilot certificate without the due process that is the right of every American. All it takes is for an assistant TSA administrator to make a "determination" that you pose a risk of air piracy or terrorism or a threat to airline or passenger safety.
TSA doesn't have to tell you what "evidence" it has against you. That information can be classified, because disclosing it might affect national security.
TSA notifies the FAA and the airman. The FAA immediately revokes your certificate, and you have 15 days to appeal the decision. Your appeal is heard by TSA, the same people who decided you're a threat. No independent review, no impartial adjudicator. TSA is the cop, the prosecutor, the judge, the jury, and the appeals court. The FAA is the executioner.
This is wrong. This is a violation of basic constitutional rights. And AOPA is fighting it.
Let there be no misunderstanding. AOPA recognizes the importance of preventing terrorists from using aircraft to attack the United States. Your association has been at the forefront in finding ways to protect general aviation from terrorist use. AOPA's Airport Watch, our pilot ID petition, and our work with others on a 12-point security plan are all proactive steps that we've taken - and continue to take - to enhance our national security.
But we cannot and will not trade our essential liberty for protection from some vague and secret "threat."
We demand that the government suspend enforcement of these rules and give citizens the opportunity to comment. TSA and the FAA can then use these comments to safeguard the legal rights of citizens and pilots as new, more reasonable security rules are formulated. (A few more weeks can't make any difference. The government thought about these rules for 16 months before suddenly rushing them into effect.)
TSA and the FAA claim that, "Congress made us do it." Our reading of the law shows they went way beyond what Congress intended. In the Aviation Transportation Security Act of 2001, Congress told TSA to assess threats, make plans for dealing with threats, and coordinate with other agencies. Congress told TSA to develop procedures to notify the FAA about potential threats. But Congress did not tell the FAA to revoke a certificate based solely on TSA's notification. We don't think it was Congress's intent that the government take away our pilot certificates without the inalienable protections of due process.
We're already at work with Congress to stop the enforcement of these rules. AOPA will see this through the legal process of our court system to restore pilots' rights. But AOPA supports reasonable, lawful efforts to combat terrorism. So work must be done to make these rules palatable and to protect your rights.
First, TSA must specify the criteria used to determine that an individual is a security threat. Other TSA and FAA rules include specific criteria for assessing threats. This case must be no different.
Second, due process must be guaranteed for every accused airman. The FAA has always had the authority to revoke or suspend a certificate on an emergency basis, given a demonstrable threat to public safety. But the airman could appeal that decision to an independent third party - an administrative law judge and then the National Transportation Safety Board. That's due process.
Finally, as a nation, we must stop treating general aviation and GA pilots as scapegoats for the sins of the terrorists. It was the failure of our intelligence systems and our control of our own borders that permitted the September 11 attacks, not a failure of the Constitution. Revoking fundamental liberties isn't going to protect us from future attack.
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